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Commentary Law and Policy

Where Is the Bold Progressive Proposal to Take Back the Courts From Trump?

Eric Lesh

President Donald Trump spent the last two-and-a-half years packing the Supreme Court and the lower federal courts with ideologically extreme judges.

Progressives are facing a crisis in the courts that elected officials refuse to take seriously.

President Donald Trump spent the last two-and-a-half years packing the Supreme Court and the lower federal courts with ideologically extreme judges. This week, the Senate confirmed Trump’s 144th judge. This includes 43 Trump judges now sitting on our powerful courts of appeal—more than double the number appointed by President Barack Obama and confirmed to the courts at this point during the first term of his presidency.

The devastating consequences of these far-right lifetime appointments will be felt for a generation or more. Yet, after two rounds of debate, not one of the 20 candidates vying for the Democratic presidential nomination have said a word about their approach to judicial nominations or their plans to undo the damage Trump has done to the federal judiciary.

Let’s be clear about just how terrible Trump judges are. According to Lambda Legal, more than one-third of Trump judges are anti-LGBTQ, and many are associated with LGBTQ hate groups. Appallingly, in hearing after hearing, Trump judges refuse to say whether they believe Brown v. Board was decided correctly, and many nominees have a record of pushing gerrymandering and voter suppression measures. Moreover, Trump made a promise to nominate anti-choice judges and justices to overturn Roe v. Wade, and by all estimations he has delivered.

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How did things go so wrong so fast? It’s simple. Republicans care about judges, Democrats don’t.

Immediately after the GOP took control of the Senate in 2015, it brought Obama’s judicial confirmations to a screeching halt. This blockade allowed Sen. Mitch McConnell (R-KY) to deny Obama’s Supreme Court nominee Judge Merrick Garland a hearing and amass a vast number of open judgeships for the next friendly administration to fill.

After Trump’s election, the Senate Judiciary Committee did away with nearly all historic bipartisan traditions that gave the minority party a say on nominations in their home states. The committee began stacking up hearings with multiple circuit court nominees and rushing through the process, often without allowing adequate time for committee questioning or even waiting for the American Bar Association to finish its candidate review.

It is therefore truly mind-blowing that a recent report said that several “centrist Democrats and the handful of institutionalists” were considering a return to old Senate rules if they were to regain power. Doing so would, among other things, allow single Republican senators to block all nominees from their home states for no reason at all.

Seriously? How many times do progressives have to repeat the scenario of Charlie Brown, Lucy, and the football? The answer must be: “not again.” This issue of judges and court reform needs to be at the very top of any Democratic president’s agenda if they want to have any chance at having their progressive priorities upheld.

It’s time for the candidates to outline a “Fair Courts Agenda” to rebalance the courts and build public confidence in the judiciary.

A progressive agenda could include several key elements:

  • Diversity: Courts depend on public support, so it is essential that the judiciary reflect the rich diversity of the people it serves. The vast majority of Trump judges are white men. Not one of the appellate court judges confirmed under Trump is Black or Latino. Ninety-two percent of his district court appointees in his first two years were white and 74 percent were male. Two nominees were members of the LGBTQ community, though only one has been confirmed. Democratic presidential hopefuls must commit to nominating judges of all races, ethnicities, genders, and sexual orientations, particularly people with multiple marginalized and intersecting identities.
  • Values: Democrats need to articulate their vision of what makes a “good judge” and prioritize appointing those who take a progressive view of the Constitution. This means nominating individuals from underrepresented experiential backgrounds like civil rights lawyers and criminal defense attorneys. Nominees must have a demonstrated commitment to defending equality and due process for all. Trump released a list of potential Supreme Court picks. A serious Democratic challenger must do the same. And because the vast majority of cases are decided by the lower courts, this list should be expanded to encompass all levels of the judiciary.
  • Ethics: The Trump administration is the most corrupt in modern history. Many of the Democratic candidates for president made a commitment to restore accountability and faith in government. Shockingly, while all lower federal judges are bound by ethical canons, there is no judicial code of conduct that applies to the Supreme Court. Democrats should force the issue by mandating the Supreme Court be subject to an ethical code. In addition, the next Democratic administration should ensure that the credible allegations of sexual misconduct against Justice Brett Kavanaugh are properly investigated.
  • Court Reform: If confirmations continue at the current pace, there will be very few empty seats for a Democratic president to fill. Judgeships should be added at all levels of the federal judiciary in order to ensure access to justice. Most importantly, additional seats must be added to the Supreme Court in order to restore its legitimacy. By stealing a seat and lowering the threshold for confirmation, the GOP has a lock on the Supreme Court that can’t be fixed through electoral politics. There is nothing in the Constitution mandating the number of justices be set permanently at nine. Adding seats can be handled through simple legislation. Democratic voters support Supreme Court expansion, and presidential contenders should listen if they care about saving democracy.

Simply put, all the progressive policies in the world are not worth squat if the courts are hellbent on striking them down. If Democrats take back the presidency and the Senate, then they need a bold plan to take back the courts.

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